University of Minnesota Law School Scholarship Repository Minnesota Journal of International Law 2017 Cuban Migration to the United States in a Post- Normalized Relations World Kevin J. Fandl Follow this and additional works at: https://scholarship.law.umn.edu/mjil Part of the Law Commons Recommended Citation Fandl, Kevin J., "Cuban Migration to the United States in a Post-Normalized Relations World" (2017). Minnesota Journal of International Law. 283. https://scholarship.law.umn.edu/mjil/283 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Journal of International Law collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Cuban Migration to the United States in a Post- Normalized Relations World Kevin J. Fandl Abstract Relations between Cuba and the United States have ebbed and flowed between outright hostility and friendship. Recently, major steps have been taken by both countries to put the Cold War past behind them and work toward a sustainable relationship for the future. As economic and political relations between the two neighbors improve, it is imperative that immigration policy be part of the transitional process. Cubans have enjoyed special immigration status for half a century, largely as a result of the Cold War. The process of economic normalization must include a normalization of immigration policy, phasing out the unnecessary and unfair favoritism that is a vestige of a long-gone era of our history. Kevin J. Fandl, Ph.D. (George Mason University), J.D./M.A. (American University), B.A. (Lock Haven University), is an Assistant Professor of Legal Studies and Strategic Global Management at Temple University. He is also the former Chief of Staff for International Trade and Intellectual Property at the United States Department of Homeland Security’s International Intellectual Property Rights Enforcement Center. 81 82 MINNESOTA JOURNAL OF INT'L LAW [Vol. 26:1 I. INTRODUCTION Although one cannot predict with certainty the reaction of the United States government to the start of Cuba’s democratic transition, its immigration policy towards Cuba is unlikely to remain the same once the process gets under way. For over three decades, the United States has accepted hundreds of thousands of Cubans, bypassing the standard rules for granting asylum or admitting aliens as permanent residents. This preferential treatment given to Cuban immigrants will almost certainly cease with the end of communism in Cuba, unless the political conditions on the island remain unstable and warrant continuation of some program for the handling of refugees . .Since the immigration policy of this country is to provide uniform treatment to aliens seeking admission, regardless of their country of origin, Cuban nationals may well find themselves facing the same barriers that citizens from other countries presently experience in seeking to migrate to the United States.1 These words were spoken by a Cuban attorney at a meeting on the Cuban economy in 1998.2 The statement came three years after Cuba had enacted a major foreign investment law welcoming investments, even from Americans, to stimulate their economy.3 It was also made two years after the Helms-Burton Act passed the United States Congress, putting significant economic and political pressure on Cuba through economic sanctions tied to a democratic transition on the island.4 No doubt, the tone at the end of the decade was one of hope through action. And now, 18 years later we see that the hope was squandered. But is there new hope today in the face of a softening tone toward Cuba? 1. Matias F. Travieso-Díaz, Immigration Challenges and Opportunities in a Post-Transition Cuba, 16 BERKELEY J. INT’L L. 234, 251 (1998). 2. Id. 3. See Kevin J. Fandl, Foreign Investment in Cuban Real Property: The Case for American Investors, 45 REAL ESTATE L. J. 166, 180 (2016). 4. Andreas Lowenfield & Brice Clagett, Congress and Cuba: The Helms- Burton Act, 90 AM. J. INT’L L. 419, 419 (1996). 2017] CUBAN MIGRATION 83 The United States has a long history with its neighbor 90 miles south of Florida. And given its proximity, Cuba has been a part of United States foreign policy, national security, and migration since its independence from Spain in 1898.5 At that moment, the United States was directly involved in the establishment of a free Cuba under the auspices of the United States government, similar to Puerto Rico but without citizenship rights. Trade relations between the countries were strong through the first half of the twentieth century, with Cuba exporting sugar and other agricultural products and the United States exporting essential commodities.6 The relationship between the United States and Cuba dramatically changed following the coup d’état by Fidel Castro and the removal of Fulgencio Bautista from office. Castro installed himself as a dictator and quickly aligned himself with the communist movement led by the Soviet Union.7 What unfolded after this turn of events was the rapid deterioration of relations between the once friendly neighbors into proxy wars, subversive interventions, and ultimately a nonviolent standoff.8 Today, as a new generation with little connection to the cold war expresses their desire to bring Cuba back into the neighborhood on positive terms, there is hope that the two countries will once again engage with each other.9 The effects that the recent softening of United States-Cuba relations will have on Cuban and American markets, which I 5. See generally Marc-William Palen, The Unequal US-Cuban Power Relationship Stretches Back to the Turn of the 20th Century, HISTORYTODAY (Dec. 21, 2014, 9:50 AM), http://www.historytoday.com/marc-william-palen/us- cuba-embargo-goes-beyond-cold-war (describing United States-Cuba relations throughout history, with particular emphasis on the rise of American imperialism and economic nationalism vis-à-vis Cuba and other occupied colonies following the Spanish-American War in 1898). 6. See generally Louis A. Perez Jr., As Cuba and the United States Reengage: The Presence of the Past, ORIGINS: CURRENT EVENTS IN HISTORICAL PERSPECTIVE, June 2015, at paras. 22, 29–47, https://origins.osu.edu/article /cuba-and-united-states-reengage-presence-past (describing both the importance of Sugar to the Cuban economy in the late 19th Century and the creation of a “free” Cuba). 7. See generally Alan H. Luxenberg, Did Eisenhower Push Castro into the Arms of the Soviets?, 30 J. INT’L STUD. & WORLD AFF. 37, 42–45 (1988) (discussing Castro’s rise to power and his allegiance to Communism). 8. See William Harvey Reeves, The Cuban Situation, 17 BUS. LAW. 980, 981, 986–88 (1962). 9. Spencer Parts, ‘Optimistic’ Cuban Youths Prepare to Welcome Obama, MIAMI HERALD (Mar. 18, 2016, 7:15 PM), http://www.miamiherald.com/news /nation-world/world/americas/cuba/article66980802.html. 84 MINNESOTA JOURNAL OF INT'L LAW [Vol. 26:1 have discussed elsewhere,10 is uncertain but likely positive. And the likelihood of more significant change in the near future is also strong.11 What is less certain, however, is what will happen to U.S. immigration policy toward Cuba. Cubans that fled the island after Castro seized power were welcomed to the United States as political refugees. They were afforded a special immigration status that provided them with privileges that other migrants did not (and do not) have. This special Cuban migrant policy has been in place both as a way to provide refuge from Cuban communism and also as a way to appease the significant Cuban-American population in the United States, a rare group of first generation immigrants with voting rights.12 In the face of normalizing economic and political relations between the countries, the status of that special migration policy is likely to come under fire. In this paper, I will attempt to explain the dilemma that policymakers will face when the following question arises: now that relations with Cuba have been normalized, should Cuban migrants be subjected to the same scrutiny as other migrants? To do so, I will provide some background on the Cuban migration story by discussing key events in Cuban history that drove Cubans to leave the island in search of refuge in the United States. Then, I will explain the corresponding United States immigration laws affecting those Cuban migrants and how they have changed over time. Finally, I will describe the impact that normalized relations might have on Cuban migration by looking at similar cases in other socialist countries. 10. See Fandl, supra note 3. 11. Kevin J. Fandl, Adios Embargo: The Case for Executive Termination of the United States Embargo on Cuba, 54 AM. BUS. L. J. 1, 43 (forthcoming 2017). 12. See Travieso-Díaz, supra note 1, at 250–52 (noting that Cubans have enjoyed special immigration rights in the past due to their flee from communism and, in the future, legislators will have to take political ramifications into account when proposing new immigration policy). 2017] CUBAN MIGRATION 85 II. THE CUBAN MIGRATION STORY Following World War II, at a time when thousands of individuals were displaced from their home countries due to war and the rise of communism, the United States enacted the Displaced Persons Act of 1948.13 That Act served as a precursor to the refugee policy later adopted, but interestingly, it also highlighted the preference of the United States government to welcome people displaced by communism; it attempted to deal with the refugee crisis produced by the war in Europe, but “singled out those fleeing from communist or communist- dominated countries as the most deserving for refugee status.”14 That Act exemplified the United States interest in providing a home for those whose political ideals conflicted with the ideals of communist regimes.